Date: 20010122
Docket: T-988-99
OTTAWA, Ontario, January 22, 2001
BEFORE: Rouleau J.
Between:
DANIEL GIROUARD
Plaintiff
And:
THE COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE
(HEREINAFTER "THE RCMP")
Defendant
ORDER
[1] The application for judicial review is allowed and the matter is referred back for reassessment of the classification of the position held by the plaintiff.
P. ROULEAU
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010122
Docket: T-988-99
Between:
DANIEL GIROUARD
Plaintiff
And:
THE COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE
(HEREINAFTER "THE RCMP")
Defendant
REASONS FOR ORDER
ROULEAU J.
[1] The plaintiff filed an application for judicial review from a decision by the Deputy Commissioner G. Zaccardelli, acting on behalf of J.P.R. Murray, Commissioner of the Royal Canadian Mounted Police ("the RCMP"), on April 15, 1999 dismissing at level II the grievance filed by the plaintiff against the classification of his position in the RCMP.
[2] On November 25, 1994 the commander of Division A mentioned in a note to the director of personnel that the classification of the plaintiff's position should be revised upward, in view of the merger between the administrative services of the directorate and Division A. At that time the commander of Division A compared the plaintiff's position to that of the officer in charge of financial services and supply in Division E, which is classified at the chief superintendent level.
[3] On December 14, 1994 the officer in charge of the pay and classification branch informed the divisional commander of Division A that the plaintiff's position would not be reclassified. The classification report was made in accordance with the classification standard known as the "Hay system", which requires that three matters be taken into account in assessing a position, namely know-how, problem solving and accountability.
[4] Four reference positions were used in the assessment, only one of which was in the RCMP (that of an officer in Division E), and three were in the federal Public Service. The Hay system requires that the position assessed be compared to similar positions in the same department or agency.
[5] The plaintiff's position was assigned a rating for know-how below that of the reference positions (528 against 608).
[6] The plaintiff filed a grievance against the decision in January 1995. The RCMP Grievance Advisory Committee dismissed the grievance.
[7] The case was then transferred to an adjudicator at grievance decision level I on grievances in the RCMP, who dismissed the grievance. The plaintiff then, on April 22, 1996, appealed the decision to the RCMP Commissioner, level II.
[8] The Commissioner referred the matter to the RCMP External Review Committee ("the ERC"), which reviewed the matter and submitted its findings and recommendations to the Commissioner. The ERC recommended that the Commissioner allow the grievance. In particular, it based its findings on the inadequacy of the study of relativity made by the comparison with four benchmark positions, only one of which was in the RCMP.
[9] Despite the ERC's findings and recommendations, the Commissioner dismissed the grievance. He indicated that the reasons put forward by the classification officers were sufficient and that the study of relativity was also sufficient. This decision is now the subject of the application at bar for judicial review.
[10] The issue is whether the Commissioner wrongly rejected the ERC's recommendation.
[11] The plaintiff maintained that the defendant gave no reasons for choosing to disregard the position taken by the ERC, contrary to what is required by s. 32(2) of the Royal Canadian Mounted Police Act ("the Act"). Although he claimed that there was no evidence to show the existence of an error of fact or procedure, the defendant omitted to say what reasons led him to draw this conclusion. Additionally, when the defendant stated that the reasons given were sufficient and justified the rating awarded to the position, he did not say "in what way" the reasons given were sufficient. This error of law is patently unreasonable. In doing this, the defendant did not observe the audi alteram partem rule.
[12] The plaintiff argued that the defendant made an error of law in not rejecting the findings of the classification report on the plaintiff's position, as that report was based on an incomplete relativity study, since it only used one position in the RCMP and three positions in the Public Service, contrary to what is required by the Position Evaluation Plan – Management Category, published by the Treasury Board of Canada. Although the relativity of the plaintiff's position was considered in light of a position within the RCMP, that analysis was not adequate in light of the requirements of the standard, which indicates that determining the relative value of a position is to be done by examining similar, superior or inferior positions. Lacking such a comparison, the evaluators' conclusions are not persuasive. It was never shown that there was only one position within the organization which could be compared with the one held by the plaintiff. An incomplete relativity study is a procedural error which prevents the relative value of all positions being fairly, uniformly and efficiently established, contrary to one of the fundamental principles of the classification.
[13] The defendant suggested that the proper standard of review is that of the reasonable decision simpliciter. In his submission, the Commissioner acted in accordance with the requirements of the Act since he gave adequate reasons for his decision to disregard the findings and recommendations of the ERC, pursuant to s. 32(2) of the Act.
[14] In my opinion, the standard of review to be applied to questions of fact in such a decision is that of the reasonable decision simpliciter (see Brennan v. Canada (Royal Canadian Mounted Police), [1998] F.C.J. No. 1629, para. 12: "in the technical area of promotion in an organization such as the RCMP in which he was operating, substantial deference, albeit somewhat short of a standard of "patent unreasonableness", is appropriate on the part of this court with respect to issues of fact"; Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.R. 817). The same standard of control should be applied to questions of law, in view of the fact that the Commissioner's decision is protected by a privative clause laid down in s. 32(2) of the Act (Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at 589-590).
[15] The Act requires a Commissioner who intends to depart from the recommendations of the ERC to give reasons for doing so:
32. (2) The commissioner is not bound to act on any findings or recommendations set out in a report with respect to a grievance referred to the Committee under section 33, but if the Commissioner does not so act, the Commissioner shall include in the decision on the disposition of the grievance the reasons for not so acting.
[16] In Jaworski v. The Attorney General of Canada, May 9, 2000, A-508-98, the Federal Court of Appeal set out the requirements which a Commissioner must meet in order to fulfil his duty to provide reasons for departing from the ERC's recommendations. First, the decision must be considered in its entirety to determine whether the Commissioner had all the relevant information before him and was aware of the issues in contention. Read as a whole, the decision should leave no real doubt as to why the Commissioner affirmed the level I decision. Since the Commissioner adopted the decision of the classification board, and that decision was itself fully reasoned, it cannot be said that the Commissioner's reasons were so terse as to immunize his decision from judicial review. The reasons must also be sufficient to ensure that the disciplinary process is reliable and transparent.
[17] In its findings and recommendations, contained in a document covering some 20 pages, the ERC indicated that there were serious shortcomings in the comparison made with the benchmarks. The ERC was of the view that the inadequate explanations regarding the comparison between the duties of the position in general and the duties of the benchmarks was such that it represented a fundamental procedural error. The ERC also found that there were problems with the relativity study. The conclusions given in that study suffer from a significant lack of detail and explanation. Further, the ERC noted that according to the classification standard and applicable case law, the relativity study of a position must be undertaken with other positions at a higher, lower or comparable level in the same department or agency. The ERC noted that in the instant case it was clearly inadequate to have selected only one position within the organization in order to determine whether the comparison was fair. Finally, the ERC found that on the facts in the record the statement by the classification manager that senior management often participated in decisions which were the responsibility of the plaintiff's position is erroneous. The ERC concluded that the classification process should be invalidated and recommenced. It recommended that the grievance be allowed.
[18] The Commissioner who had to rule on the grievance decided to dismiss it. The gist of his decision is the following:
[TRANSLATION]
After a careful review of the record, I find that there is no evidence for the existence of an error of fact or procedure. Even if the Committee considered that the detailed reasons contained in the position evaluation of Superintendent Girouard were inadequate, I consider that they were not so inadequate as to constitute an error. Further, there is no indication that the review conducted by the Classification Section was in error or was not consistent with classification policies in any respect. I therefore do not support the Committee's finding that the reviewers should have taken their analysis beyond the points considered. The question was one of sufficiency of reasons as opposed to their absence. The reasons given were sufficient and justified the rating assigned to this position. As regards the relativity study, the documentation in the record showed that the applicant's position was compared with three external positions and one internal position. I regard this relativity study as sufficient and see no need to compare this position further. The number of comparisons to be made in a relativity study may vary from one position to another, but in the present case I find no evidence in the record to demonstrate a need for taking the relativity study further.
[19] The plaintiff maintained that the Commissioner should have specified the reasons leading him to conclude that there was no evidence for the existence of an error of fact or procedure. He also objected that the Commissioner had not indicated how the reasons given were sufficient and justified the rating attached to the position. Further, the Commissioner ignored the provisions of the Position Evaluation Plan – Management Category, which specify that the comparison must be with other positions within the organization in question.
[20] I share the plaintiff's view and allow his application, if only for the last reason given by him.
[21] The method of evaluation used in the federal Public Service is based on evaluation tests and Hay plan profile method ("the Hay system"). The Position Evaluation Plan – Management Category, published by the Treasury Board, is an update of the classification system and designed to help evaluators understand the approach used in evaluating positions in the management category. The plan is used as a reference tool, not as a fixed requirement. Essentially, it lays down guidelines needed in making evaluations and justifying the results obtained (see the "Introduction" section of the Plan). At pp. 24 and 27, the Plan states:
Step Three: Regardless of whether or not you have had to use several reference jobs, you should do a reality check. You should cross-reference your evaluation against the evaluations for other jobs in the department or agency. (p. 24)
Testing the appropriateness of your evaluations is an essential part of the job evaluation process. The purpose is to check whether or not you have achieved the desired result of a good "fit" between a newly evaluated job and the other, previously evaluated positions in the same unit and function. If these relationships are not appropriate or sound, the evaluation process is not complete. (p. 27)
[22] In his decision the Commissioner wrote that [TRANSLATION] "there is no indication that the review by the Classification Section was erroneous or not in keeping with the classification policies in any respect". With respect, I find it hard to see how this assertion can be maintained in view of the policy indicating that comparisons should be with positions within the agency. In my view, the plaintiff was entitled to expect that reasons would be given for departing from such a well-settled policy. I agree with the ERC's conclusion when it writes:
[TRANSLATION]
Without a proper relativity study with a sufficient number of positions in the agency, it is impossible to conclude that the classification process meets one of the fundamental principles of classification, namely "that the relative value of all jobs . . . is established in an equitable, consistent and effective manner". A relativity study with a single position may be sufficient in some circumstances if there was no other comparable position in the agency, but it was not shown that this was why no other positions were selected for the relativity study, apart from that in Division E. There is no apparent reason why the choice was limited to one position in conducting the relativity study when classifying the applicant's position. It is possible that the evaluators did not know the extent of the relativity study they had to conduct. Not conducting a relativity study is thus a procedural error and is as much of a procedural error as conducting one which is incomplete. (at p. 18)
[23] The Commissioner could not pass over such a finding in silence.
[24] Additionally, the Commissioner wrote that [TRANSLATION] "the applicant's position was compared with three external positions and one internal position. I regard this relativity study as sufficient and see no need to compare this position further. The number of comparisons to be made in a relativity study may vary from one position to another, but in the present case I find no evidence in the record to demonstrate a need for taking the relativity study further".
[25] The Commissioner's reasons are somewhat superficial. It can be seen from reading the findings and recommendations of the ERC that the problem was not so much with the number of comparisons as with their quality. Although the Commissioner referred in his decision to the problems of quality noted by the ERC, his conclusion does not appear to address them. The many problems raised by the ERC are serious ones and, in my view, at least required consideration by the Commissioner. By dismissing all the recommendations of the ERC without really giving reasons for his decision, the Commissioner contravened s. 32(2) of the Act and arrogated to himself a jurisdiction which he did not have, thereby making his decision reviewable by this Court.
[26] In my view, the case at bar can be distinguished from Jaworski, supra, in that the facts and circumstances are not the same. In that case, a dismissal for misconduct that was challenged, the Federal Court of Appeal had to consider the adequacy of the reasons given by a Commissioner for departing from the ERC's recommendations. The following passage from the reasons of Evans J.A. clearly indicates that the decision was dependent directly on the facts of the case (at para. 86):
[The Commissioner's reasons] are sufficient to ensure his accountability for the ultimate decision to terminate Constable Jaworski's career in the RCMP. I read his reasons as in effect saying that, in concentrating its attention on the pieces of evidence individually, the Committee lost sight of the big picture. In contrast, the board considered the evidence as a whole and based its decision on the totality of the material before it, without at the same time ignoring the weaknesses of some of its component parts. In these circumstances, the Commissioner was not required to rebut each of the points on which the Committee had taken issue with the board.
[27] I accordingly quash the Commissioner's decision and direct that there be a re-evaluation of the classification of the position held by the plaintiff.
P. ROULEAU
JUDGE
OTTAWA, Ontario
January 22, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-988-99
STYLE OF CAUSE: Daniel Girouard
v.
The Commissioner of the Royal Canadian Mounted Police
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 9, 2001
REASONS FOR ORDER BY: Rouleau J.
DATED: January 22, 2001
APPEARANCES:
Marie-Christine Girouard FOR THE PLAINTIFF
Michel Lapierre FOR THE DEFENDANT
SOLICITORS OF RECORD:
Marie-Christine Girouard, Attorney FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario